State v. Marker
2014 Ohio 3840
Ohio Ct. App.2014Background
- Marker was charged with violating a temporary protection order under R.C. 2919.27(A)(1), a first-degree misdemeanor, in Fairborn Municipal Court.
- Trial occurred December 4, 2013, after Marker pleaded not guilty and the case proceeded to a jury trial.
- Deputy Wical testified Marker was found in a parked blue minivan with a female who identified herself as Cecile C. Groves near Koogler Wetland/ Prairie Reserve, within proximity of Groves.
- Groves provided birth date and Social Security number matching Cecile C. Groves; Kaufman testified she personally served the protection order on Marker on March 19, 2013 and Marker signed an acknowledgment of service.
- The protection order barred Marker from being within 500 feet of Groves or contacting her; Marker was convicted and sentenced to jail time with fines.
- Marker appealed, challenging sufficiency of evidence, alleged due-process violations from prosecutorial remarks about his silence, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove violation | Marker lacked identity proof of Groves and service | Insufficient proof of Groves and service | Sufficient evidence supporting conviction |
| Prosecutorial use of post-arrest silence | State violated Fifth Amendment by eliciting silence and commenting on it | Violation of his rights to silence and counsel | State violated Fifth Amendment; not plain error; harmless given other evidence |
| Ineffective assistance of counsel | Counsel failed to object to testimony and exhibit admissions | Counsel's performance was deficient | No prejudice; ineffective-assistance claim fails |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio Supreme Court, 1997) (sufficiency of evidence standard; reasonable-doubt review)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio Supreme Court, 1991) (test for determining criminal evidence sufficiency)
- State v. Leach, 102 Ohio St.3d 135 (Ohio Supreme Court, 2004) (pre-arrest and post-Miranda silence protections)
- State v. Davis, 116 Ohio St.3d 404 (Ohio Supreme Court, 2008) (silence and Fifth Amendment protections in trial)
- State v. Thompson, 33 Ohio St.3d 1 (Ohio Supreme Court, 1987) (prosecutorial comments on silence admonition)
- State v. Hancock, 108 Ohio St.3d 57 (Ohio Supreme Court, 2006) (plain error standard and waiver analysis)